271 F.

2d 97

ESTATE of Eli L. GARBER, Deceased, Farmers Bank and

Trust Company of Lancaster, Pennsylvania, Executor,
Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 12838.

United States Court of Appeals Third Circuit.

Argued June 2, 1959.
Decided October 16, 1959.

Jules G. Krner, 3d, Washington, D. C. (R. S. Doyle, Washington, D. C.,

Blair, Korner, Doyle & Worth, Washington, D. C., on the brief), for
petitioner.
Kenneth E. Levin, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen.,
Lee A. Jackson, Harry Baum, Attorneys, Department of Justice,
Washington, D. C., on the brief), for respondent.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit
Judges.
BIGGS, Chief Judge.

This is an appeal from a portion of a decision of the Tax Court of the United
States denying a claim for refund by the executors of the Estate of Eli L.
Garber for an alleged overpayment of $26,516.55 in estate taxes. The decedent
had been employed as the president of both Penn Dairies, Inc. and Garber Ice
Cream Company of Lancaster, Pennsylvania, for a number of years. At his
death on June 16, 1951, he was serving as president of both corporations. In
1941, Penn established an employee's pension plan to be administered by a
pension board. The Garber Company established a similar plan in 1943. Under
both plans all contributions to the funds could be made by the respective
companies and by their employees. No contributions, however, were made by
employees. The funds were created and established by the companies alone.
Both plans were designed to meet the requirements of a "qualified trust". See

Section 165, Internal Revenue Code, 1939, 26 U.S.C.A. 165. One of the
requirements of a trust if it is to be deemed a "qualified" one is that both the
corpus and income of the trust must be used exclusively for the benefit of
employees or their beneficiaries. Under Section 23(p) of the 1939 Code, 26
U.S.C.A. 23(p), the contributions made by an employer corporation to any
employees' pension fund must constitute a definite assignment of the funds to
the trust and the corporation can have no control over the funds. Moore v.
Commissioner, 1941, 45 B.T.A. 1073. With minor exceptions not relevant here,
both pension plans, including trust indentures and benefits formulae, are
substantially identical in their relevant provisions. The single difference arises
from an amendment made to the Penn plan in 1950. This amendment provided
that in the absence of the designation of a beneficiary by the employee death
benefit payments, varying immaterially insofar as this case is concerned, were
to be made in the discretion of Penn's pension board to the surviving spouse,
children, parents, sisters, or to the estate of the deceased employee. But the
original plan, applicable to Garber, provided only that if an employee failed to
designate a beneficiary the payments should go to his estate on his death.
2

The pension plans operate as follows. There is credited annually to each

employee's account an amount based on two factors: the employee's salary and
the annual profits of the respective contributing companies. If an employee,
before retirement, dies or leaves the company permanently for any reason other
than discharge for wilful misconduct, he, his estate, or his beneficiaries, as
designated by him are entitled to the benefits accrued under the plans either by
way of lump sum payment, installment payments, or annuity payments. The
percentage the employee, or his beneficiary or beneficiaries are to receive from
the accumulated account of each employee qualifying depends on the total
length of service completed by the employee. Credits, which, for reasons not
pertinent here, are not paid by way of benefits to the employee whose
employment terminates, inure to the respective trust funds and are treated as a
part of the employers' donations to the funds for the current or succeeding years
according to a formula which we need not detail.

If either company should fail to contribute to the respective funds in one or

more years, or should be dissolved or become bankrupt, the pension boards
may elect to continue the trust funds and on the retirement of any employee
shall pay to him as indicated above his aliquot portion of the fund or funds in
which he is entitled to participate or make him a lump sum payment. Both plans
state that the legal title to the funds remains in the respective trustees and that
at no time shall any employee be deemed to have a vested interest in the assets
of the trusts. The plans provide also that the employee's share cannot be
attached and that the employee has no right to assign, transfer, or pledge any

interest which he may possess in the funds.

4

Both plans provide that two years employment is necessary in order to render
an employee eligible for participation in the fund's benefits and ordinarily the
benefits are to commence at age sixty-five. Though the plans are somewhat
ambiguous in this regard it would appear that sixty-five years is the "normal"
retirement age prescribed by both companies. If, however, the employee is over
sixty years of age on becoming eligible to participate he may receive the
benefits of the fund on completion of a minimum of five years additional
employment or so much additional service as will give him a total of ten years
employment with his company. The amount of the benefits to which the
employee becomes entitled varies with the length of his employment and the
amount of his annual salary, but the pension benefits cannot exceed a specified
figure. The employee may receive payments based on his life expectancy, or
over a ten-year period, or benefits may be commuted to a life pension as the
employee may elect. The life pension is of an amount such as can be obtained
from a legal reserve life insurance company at the time of the employee's
retirement, estimated, of course, in relation to the reserves accumulated to the
credit of the employee.

Both plans provide for benefits on retirement either before or after the
retirement age of sixty-five. An employee, who receives the approval of his
employer to work beyond the retirement age, may either leave his retirement
benefits in the fund at compound interest until such time as he desires the
benefits to commence or, at his election, he may immediately begin to collect
full or partial benefits from the fund. In any case, if the employee should die
prior to the exhaustion of his accrued benefits, the accumulated reserve
earmarked for him, less loans, advances, benefits, pension payments or cash
payments previously made, are required to be paid to the beneficiaries named
by him. If he has designated no beneficiaries payments will be made in
accordance with the provisions of the plans as outlined above.

The decedent, Eli Garber, became eligible for full benefits under the Penn plan
in 1946 at the age of eighty-two years and under the Garber Company plan in
1948 at the age of eighty-five years. He did not retire from the presidency of
either company and he elected not to take any benefits under either company's
plan, In 1950, pursuant to his right to designate a beneficiary, he directed the
pension boards of both the Penn and the Garber Company funds to pay the
death benefits "to any or either of [his] children, [his] children's spouses, [his]
grandchildren, [their] spouses and issue, or to the survivor of them, in such
proportions, in such amounts and at such times as the Pension Boards [should]
determine was for the best interests of the said beneficiaries. * *" On Eli

Garber's death in 1951, his accrued credit in the Penn fund was $60,823.14, and
in the Garber Company fund was $24,714.12. These amounts represented the
accumulations of his accruals in the funds plus interest. The sums accrued were
distributed by the pension boards in equal amounts to each of Eli Garber's three
children.
7

In filing the federal estate tax return Garber's executor included in the gross
estate the amounts paid to Garber's children. The executor then filed a claim for
a refund in the amount of $26,516.55, this amount representing taxes assessed
by the United States against Garber's estate on the amounts of the benefits paid
to Garber's children. The claim was rejected. The Tax Court refused to reverse
the Commissioner's ruling.1 The petition for review followed.

The Commissioner contends that the benefits paid to Garber's children are
includible in Garber's gross estate under Section 811, subsections (a), (c), (d),
or (f), of the Internal Revenue Code of 1939, 26 U.S.C.A. 811(a), (c), (d), or
(f). Section 811(a) is designed to include within the gross estate all property of
a decedent to the extent of his interest therein at the time of his death. Section
811(c) and (d) relate to transfers made by decedent. Section 811(c) concerns
itself with transfers intended to take effect by way of possession or enjoyment
at or after the death of the transferor. Section 811(d) deals with transfers in
which the transferor reserves to himself the power to alter or change the
enjoyment of the property. Section 811(f) brings within the gross estate of the
decedent any property over which the decedent retained at the time of his death
a general power of appointment, such a power coming into existence after
October 21, 1942.

Under subsection (a), as well as the other subsections of Section 811, the
primary issue in determining the includibility of death benefits derived from
pension plans such as those at bar is the extent of the control that the decedent
exercised over the pension funds which gave rise to death benefits. Clearly
includible in the gross estate are death benefits derived from funds which
represent deferred compensation to the decedent, or granted under plans which
explicitly gave the decedent direct contractual rights in the funds. See Goodman
v. Granger, 3 Cir., 1957, 243 F.2d 264, and Estate of Wolf, 1957, 29 T.C. 441,
reversed in part on other grounds not pertinent here, 3 Cir., 1959, 264 F.2d 82.
Under Goodman v. Granger, supra, death benefits were deemed includible in
the decedent employee's gross estate even though there was a provision in the
agreement calling for forfeiture of the decedent's rights if he had committed
certain acts.

10

The taxpayer points out that the Court of Appeals for the Sixth Circuit held in

Glenn v. Hanner, 1954, 212 F.2d 483, affirming D.C.W.D.Ky.1953, 111

F.Supp. 52, that benefits resulting from an employee's death before he reached
retirement age under a plan substantially similar to those at bar were not
includible in the employee's gross estate under subsections (c) or (d) of Section
811. The Commissioner points out that in the Hanner case the decedent
employee never acquired a "vested" contractual interest to pension benefits for
he died before becoming eligible for retirement. This is true.2 Nor did the
district court or the court of appeals rule directly on the applicability of
subsection (a) of Section 811 although this point was raised by the
Commissioner in the district court. In these respects the case at bar differs from
Hanner. As to sums representing pension benefits which Garber could have
received, but elected not to take down, we entertain no doubt that they are
includible under Section 811(a). But as to those portions of the lump sum
payments received by Garber's children which can be distinguished, if
distinction be possible, from those portions of the lump sum payments which
Garber could have taken down as pension benefits, the case at bar cannot be
distinguished from Hanner. The decisions of the Court of Appeals for the Sixth
Circuit are entitled to great respect but we cannot follow Hanner in deciding the
case at bar.
11

In Dimock v. Corwin, D.C.E.D.N.Y. 1937, 19 F.Supp. 56, 3 a decision

construing Section 302 of the Revenue Act of 1926, 44 Stat. 70 (1926), the
predecessor of Section 811(a) of the 1939 Act, the court ruled that death
benefits paid to the widow of a retired employee in accordance with the
employee's pension rights, were not taxable as part of his gross estate. But the
plan in the cited case provided, unlike those of Penn and the Garber Company,
that the employer retained the right to cancel the employee's pension and death
benefits at its option at any time prior to the employee's death. The impetus of
this decision led the Internal Revenue Bureau to conclude that death benefits
payments should not be deemed to be includible in the gross estate of the
decedent when the employer had retained the right to cancel them. The Bureau
reached this conclusion on the theory that the employee did not possess
sufficient control over the payment of the benefits to warrant inclusion in the
employee's gross estate. See G.C.M. 17817, 1937-1 C.B. 281. Subsequently the
Bureau altered its position, ruling that so long as an employee possessed the
right to designate the beneficiary of death benefits, under a profit-sharing or
retirement plan, death benefits paid under such a plan did constitute property
includible within the meaning of Section 811(a), despite the fact that the
employer retained the right to terminate the plan entirely or to eliminate the
payment of death benefits to the beneficiaries of an employee dying prior to the
receipt of any disbursements under the plan, so long as the employee's own
rights to his accrued credits remained intact. See G.C.M. 27242, 1952-1 C.B.

160. However, G.C.M. 27242 by its terms was not to be applied to estates of
persons dying prior to July 1, 1952 and Garber's estate would be entitled to
receive the aid of the previous ruling were it not for the fact that there is
nothing in the Penn and Garber Company plans which authorizes those
companies to abrogate the right of the employee to designate beneficiaries
under the plans. Thus the General Counsel Memorandum relied on by the
taxpayer does not aid it.
12

The decision of the Tax Court in Estate of Saxton, 1949, 12 T.C. 569, is not
conclusive under the circumstances of the case at bar since it considers only the
applicability of subsections (c) and (d) of Section 811 of the 1939 Code. There
are other recent decisions dealing with fact situations practically identical with
those before us, including one in this circuit, but they also decide only the
applicability of subsections (c) and (d) of Section 811 and do not deal with
subsection (a). See Higgs' Estate v. Commissioner, 3 Cir., 1950, 184 F.2d 427;
Commissioner of Internal Revenue v. Twogood's Estate, 2 Cir., 1952, 194 F.2d
627; Libbey v. United States, D.C. N.D.Cal.1956, 147 F.Supp. 383.4 We
therefore are without direct judicial authority on this issue. Nor is the
legislative history of the statute helpful. Congress itself seemed somewhat
puzzled as to how this critical issue should be decided for the Report of the
Committee on Ways and Means of the House of Representatives to accompany
H.R. 8300, which became the Internal Revenue Code of 1954, expressed doubt,
p. 90, as to whether an annuity purchased for an employee by an employer is
includible in the gross estate of the employee under the 1939 Code.5

13

Two principal assertions of the taxpayer must now be discussed. As we have

indicated the taxpayer lays great emphasis on the fact that the trust indentures
supporting the plans provide specifically, first, that none of the property
comprising the corpora shall vest in the employees and, second, that title
thereto shall be vested in the trustees, subject to the control of the pension
boards. The thrust of this argument is plain. It constitutes an attempt by the
taxpayer to bring the facts of the instant case within the ambit of such decisions
as Dimock v. Corwin, supra, in which the employer retained the right to
withdraw the plan and destroy the interest of an employee's designee to receive
death benefits, at least up to the date of the employee's death.

14

Under the circumstances at bar, the use of the terms "vested" and "unvested" in
characterizing an employee's interest, such as those of Garber, is a sterile
exercise for it is the status of Garber's rights in the funds that is determinative,
not the label given his interests by the trust documents. Neither Penn nor the
Garber Company could destroy the interests of Garber in the plans once he had
become eligible for benefits. Amounts credited or accrued to individual

employees would have remained unaffected even had the corporations ceased to
have made contributions or have been dissolved. Each of the plans, as we have
stated, was supported by "qualified" trusts within the purview of Section 165 of
the Internal Revenue Code of 1939. The plans were for the benefit of the
corporations' employees and had the trusts been done away with for the benefit
of the corporations, the corpora reverting to the corporations, the trusts would
have lost their "qualified" status.
15

As we have said, Garber chose not to receive pension benefits. He was

president of both corporations at the time of his death. He did not name specific
beneficiaries but designated a group among whom the pension board might
distribute his interests at its discretion.6 Garber's benefits under the plans must
be regarded as being based on indefeasible rights growing out of his
employment by the corporations, akin to deferred compensation payments and
as constituting "property" within the purview of Section 811(a). The estate tax
is imposed on the "transfer" of a decedent's property. See Section 810, 26
U.S.C.A. 810. This property, acquired by Garber in consideration of his
services as president of the corporations and under the terms of the plans and
the trust agreements, became fixed when the corporations made their
contributions to the corpora. At these times Garber's aliquot portions of the
corpora were credited to and earmarked for him. Garber possessed the right to
receive the entire sum of his interests in the corpora by way of lump sum
payments if he quitted the companies at the retirement ages applicable to him
under the respective plans, or upon other contingencies relating to the funds,
hereinbefore set out. He also possessed the right during his lifetime to designate
the beneficiaries to receive the lump sum payments and, as we have stated, he
directed the pension boards to pay to certain classes of beneficiaries related to
him by blood or marriage the credits accrued to him at the time of his death.
His children as beneficiaries in fact received the whole of the lump sum
payments on his death by direction of the pension boards. We conclude that
Garber had a sufficient degree of control over those portions of the corpora
which had accrued to him to render the lump sum payments made to his
children, the sums in dispute, includible in his gross estate under Section
811(a).

16

The decision of the Tax Court will be affirmed.

Notes:
1

The opinion of the Tax Court was not reported for publication

Albeit Hanner did have the right to receive his accrued credits if he left the
company prior to retirement age for good reason

Affirmed on another issue, 2 Cir., 1938, 99 F.2d 799, affirmed 1939, 306 U.S.
363, 59 S.Ct. 551, 83 L.Ed. 763

The Tax Court in its decision does not attribute includibility of the benefits in
Garber's gross estate to any particular subsection of Section 811. This is an
undesirable practice. The Tax Court, comprised as it is of experts, should give
to the reviewing tribunals the benefits of its knowledge and experience and
designate the specific statutory provisions on which it bases its decisions

It is interesting to note that Congress in Section 2039(c) of the Internal Rev.

Code of 1954, 26 U.S.C.A. 2039(c), as amended by the Technical
Amendments Act of 1958, 72 Stat. 1622, 1658, provided that notwithstanding
any other provisions of Section 2039 of the Internal Revenue Code of 1954, a
successor to Section 811 of the Revenue Code of 1939, annuities or other
benefits receivable by any beneficiary except the executor, under most
employees' trusts should not be subject to estate tax taxation. This provision
was made applicable to all decedents dying after December 31, 1953

Each of the original trust instruments, Article III, Section 3(c) provided:
"Payment of Death Benefits: In event an employee's death occurs prior to his or
her retirement or after retirement but before receiving the accumulated reserves
in the Fund earmarked for such employee, then any such balance less loans,
advances, benefits, payments or cash payments, as directed by the Pension
Board shall be paid by the Trustee in cash or one lump sum settlement or in
installments periodically, or the value thereof shall be assigned in property,
securities, insurance or annuity contracts to such spouse, lineal heir or heirs,
dependent or dependents or estates of such deceased employee as more
particularly set out in Article II, page 3 of the Formula of Benefits, according as
shall be directed by the Pension Board." Article II, Section 5, of each of the
Formulae of Benefits provided as follows:
"Death Benefits: Where an employee becomes deceased prior to reaching his or
her retirement, or after reaching retirement but before receiving the
accumulated reserves earmarked for such employee and contributed by the
Employer then any such balance less loans, advances, benefits, pension
payments or cash payments shall be paid to such spouse, heir or heirs,
dependent or dependents of the deceased employee as the employee shall
designate, in cash, property, securities, insurance or annuity contracts, in one
lump sum or by installments over a period of time, and upon failure of the

employee to designate a beneficiary, then such remaining credit shall inure to

the estate of such deceased employee."
The provisions quoted above were never amended or deleted insofar as the
Garber Company Pension Fund was concerned, and were in effect at the time of
Garber's death. With respect to the Penn Dairies Pension Trust and Formula of
Benefits, however, the above provisions were deleted by an amendment of
August 21, 1950, and the following substituted:
"Where an employee becomes deceased prior to reaching his or her retirement,
or after reaching retirement but before receiving the accumulated reserves
earmarked for such employee and contributed by the Employer, then any such
balance less loans, advances, benefits, pension payments or cash payments shall
be paid to the employee's designated beneficiary or beneficiaries, and in the
absence of a designated beneficiary or beneficiaries, then to any surviving
spouse, children, parents, brothers, sisters, or to the deceased employee's estate,
according as the Pension Board shall direct."